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1955 DIGILAW 186 (KER)

CIT v. Pothen Joseph And Sons

1955-12-15

KUMARA PILLAI, M.S.MENON

body1955
Judgment :- 1. These are references by the Commissioner of Income-tax, Mysore, Travancore-Cochin and Coorg, Bangalore, under sub-s. (3) of S.50 of the Travancore Income Tax Act, VIII of 1096. Mr. K.K. Mathew appearing on behalf of the assessee at whose instance this Court required the reference to be made submits before us that his client is not interested in our answering the questions referred. 2. Sub-s. (5) of S.50 of the Travancore Income-Tax Act VIII of 1096 (like sub-s. (5) of S.66 of the Indian Income-Tax Act, 1922) provides that : "the High Court, upon the hearing of any such case, shall decode the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded". 3. In.M.M. Ispahani, Ltd., Calcutta v. Commissioner of Excess Profits Tax, West Bengal (1955) 27 ITR 188 the Calcutta High Court has decided that "when the party who had caused a reference to be made, chooses not to appear at the hearing" the Court "is not bound to answer the question and should not do so". The position must be the same when the party does enter an appearance but only to submit that he is not interested in the reference being answered. 4. In the decision above mentioned Chakaravarti, C.J., dealt with the wording of S.66(5) of the Indian Income-Tax Act, 1922, as follows: "It will be noticed that the section is expressed, in mandatory language and deploys the word "shall" throughout its many clauses. Prima facie therefore, it would seem that upon a reference being received, it becomes an obligation of the High Court to answer the question referred and take the further steps mentioned in the section and it becomes equally the obligation of the Appellate Tribunal to adjust its order, if necessary, to the opinion which the High Court may express on the question concerned. It seems to me, however, in spite of the apparently mandatory language of the sub-section that its true import cannot be to require the High Court to answer the questions referred to it in all circumstances, irrespective of whether the parties appear before it or not. It seems to me, however, in spite of the apparently mandatory language of the sub-section that its true import cannot be to require the High Court to answer the questions referred to it in all circumstances, irrespective of whether the parties appear before it or not. To take an extreme case, suppose instead of only the party who had caused the reference to be made being absent both the parties fail to appear would the court still be bound to deal with the reference and answer the question referred? I cannot imagine that the section purports to impose upon the Court any such obligation. It seems to me that before the duty contemplated by the section to decide the questions of law referred can arise, a hearing of the case must take place because the section opens with the words: "The High Court upon the hearing of any such case" etc. Where the party, who has caused the reference to be made and who is in the position of a plaintiff, fails to appear, no hearing of the case can take place and in my view since the preliminary condition of the sub-section is not satisfied in such a case, the consequent obligation of deciding the question of law and delivering a judgment does not also arise', and said: "It appears to me, therefore, that it is not required of us that we should answer the question referred to us in this reference at all, since the assessees are not appearing before us. We therefore decline to answer the question". 5. As we are in respectful agreement with the view adopted in M.M. Ispahani Ltd. Calcutta v. Commissioner of Excess Profits Tax, West Bengal (1955) 27 ITR 188 we would also decline to answer the questions referred in these two cases and direct that a copy of this judgment be forwarded to the Chief Revenue Authority. 6. Mr. G. Rama Iyer, counsel for the Department, submitted before us that the Department also is not interested in the questions being answered as they arise under a Travancore Income-Tax Act which is no longer in force and as they are not likely to come up for discussion in the future. 7. We make no order as to costs.